P. v. Chavarria
A jury convicted defendant Francisco Galvan Chavarria of rape of an incapacitated person (Pen. Code, 261, subd. (a)(3)),[1]sexual battery ( 243.4, subd. (e)(1)), residential burglary ( 459, 460), and petty theft. Defendant was sentenced to state prison for seven years four months. On appeal, defendant contends (1) his conviction of sexual battery must be reversed and dismissed because it is a necessarily included offense of rape of an incapacitated person; (2) if sexual battery is not a necessarily included offense of rape of an incapacitated person, the sentence imposed for the battery must be stayed pursuant to section 654; (3) the evidence was insufficient to support the burglary and petty theft convictions; (4) if the evidence is sufficient to support the burglary and petty theft convictions, the concurrent term for the petty theft must be stayed pursuant to section 654; (5) prosecutorial misconduct requires reversal of all convictions; and (6) imposition of consecutive terms violated his right to a jury trial and proof beyond a reasonable doubt as set forth in Blakely v. Washington (2005) 542 U.S. 296 [159 L.Ed.2d 403]. With the exception of defendants second and fourth contentions, which we conclude have merit, we reject his other claims. Accordingly, pursuant to section 654, Court stay the sentences imposed for the sexual battery and petty theft convictions.
Comments on P. v. Chavarria